Citation NR: 9614818
Decision Date: 05/28/96 Archive Date: 06/11/96
DOCKET NO. 94-05 065 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to service connection for residuals of dental
trauma involving tooth number 9 for purposes of entitlement
to Class II(a) outpatient dental treatment by the Department
of Veterans Affairs (VA).
2. Entitlement to an increased (compensable) rating for left
ear hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Michael P. Vander Meer, Counsel
INTRODUCTION
The veteran served on active duty from August 1968 to June
1971.
This case is before the Board of Veterans' Appeals (Board) on
appeal from decisions of the VA Regional Office (RO) in
Lincoln, Nebraska.
The appeal was received at the Board in February 1994 and
docketed at the Board in March 1994.
In correspondence submitted by the veteran in February 1994,
he asserted entitlement to service connection for right wrist
disability. Such claim is, therefore, referred to the RO for
appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
Regarding his claim for service connection for residuals of
dental trauma, the veteran asserts that he sustained trauma
to an "upper front tooth" in early 1969, while stationed at
Ft. Eustis, Virginia, when he was struck in the mouth by a
rifle butt.
Concerning his claim for an increased rating for his service-
connected left ear hearing loss, he states that hearing
involving such ear has recently deteriorated to the point
that, even with a hearing aid, he experiences difficulty in
discriminating voices in a group setting.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West
1991 & Supp. 1995), following review and consideration of all
evidence and material of record in the veteran's claims file,
and for the following reasons and bases, it is the decision
of the Board that, with favorable resolution of reasonable
doubt, the evidence supports service connection for tooth
number 9, warranting related Class II(a) outpatient dental
treatment by VA; and that the evidence is against an
increased rating for left ear hearing loss.
FINDINGS OF FACT
1. Chronic damage to tooth number 9 was caused by sudden,
external force during wartime service.
2. The veteran has level II hearing in the left ear,
currently manifested by an average pure tone threshold of
44 decibels with speech recognition ability of 88 percent
correct.
CONCLUSIONS OF LAW
1. A chronic dental condition due to trauma, involving tooth
number 9, was incurred during service. 38 U.S.C.A. §§ 1110,
1712, 5107 (West 1991 & Supp. 1995); 38 C.F.R. § 17.123(c)
(1995).
2. The criteria for a compensable rating for left ear
hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991 & Supp. 1995); 38 C.F.R. §§ 4.85, 4.86 and Part 4,
Diagnostic Code 6100 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board finds that each of the veteran's claims is well
grounded within the meaning of 38 U.S.C.A. § 5107(a). That
is, the Board finds that these claims are plausible. The
Board is also satisfied that all relevant facts have been
properly developed, and that no further assistance to the
veteran is required to comply with 38 U.S.C.A. § 5107(a).
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (1995). The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1995).
Service connection is in effect for left ear hearing loss,
for which the RO has assigned a noncompensable rating under
the provisions of Diagnostic Code 6100 of the Rating
Schedule.
In accordance with 38 C.F.R. §§ 4.1 and 4.2 (1995), and
Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has
reviewed the service medical records and all other evidence
of record pertaining to the history of the veteran’s service-
connected left ear hearing loss. The Board has found nothing
in the historical record which would lead it to conclude that
the current evidence of record is not adequate for rating
purposes. Moreover, the Board is of the opinion that this
case presents no evidentiary considerations which would
warrant an exposition of the remote clinical histories and
findings pertaining to such disability.
I. Dental Trauma
Under the law, service connection may be granted for any
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. § 1110. In addition,
those having a service-connected noncompensable dental
condition or disability adjudicated as resulting from combat
wounds or service trauma may be authorized any treatment
indicated as reasonably necessary for the correction of such
service-connected noncompensable condition or disability.
This is known as "Class II(a)" VA dental benefits.
38 U.S.C.A. § 1712; 38 C.F.R. § 17.123(c).
The veteran asserts that he sustained trauma to an "upper
front tooth" in early 1969, while stationed at Ft. Eustis,
Virginia, when he was struck in the mouth by a rifle butt.
In this regard, service medical records are negative for any
reference to the foregoing incident in service. However, the
Board notes that, when the veteran was examined for service
entrance purposes in August 1968, all of his upper front
teeth (generally teeth numbers 5-13) were shown to be
present, with no indication that any of these teeth
(including tooth number 9) were either carious or
nonrestorable. Thereafter, service dental records reflect
that, in January 1969, while stationed at Ft. Eustis,
Virginia, the veteran was put on a waiting list to receive a
crown on tooth number 9, the placement of which was
accomplished the following month. On assessing the foregoing
evidence in conjunction with the veteran's contentions
relative to sustaining trauma to an "upper front tooth" in
early 1969 (the approximate time a crown was in fact placed
on tooth number 9), and inasmuch as tooth number 9 was shown
to be in sound condition just five months earlier when he was
examined for service entrance purposes, the Board is
persuaded, with favorable resolution of reasonable doubt,
that chronic damage to tooth number 9 resulted from trauma
sustained in service. Accordingly, service connection for
tooth number 9 is granted, warranting entitlement to related
Class II(a) outpatient dental treatment by VA. 38 U.S.C.A.
§§ 1110, 1712, 5107(b); 38 C.F.R. § 17.123(c).
II. Increased Rating, Left Ear Hearing Loss
Under the schedular criteria, evaluations of unilateral
defective hearing loss range from noncompensable to
10 percent based upon organic impairment of hearing acuity as
measured by the results of controlled speech discrimination
tests together with the average hearing threshold level as
measured by pure tone audiometry tests in the frequencies
1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate
the degree of disability from defective hearing, the Rating
Schedule establishes 11 auditory acuity levels from level I
for essentially normal acuity through level XI for profound
deafness. In situations where service connection has been
granted only for defective hearing involving one ear, and the
appellant does not have total deafness in both ears, the
hearing acuity of the nonservice-connected ear is considered
to be normal. In such situations, a maximum 10 percent
rating is assignable where hearing in the service-connected
ear is at level X or XI. 38 C.F.R. § 4.85 and Part 4,
Diagnostic Codes 6100 to 6101.
The veteran asserts that hearing in his left ear has recently
deteriorated to the point that, even with a hearing aid, he
experiences difficulty in discriminating voices in a group
setting. In this regard, an August 1993 VA audiological
evaluation indicates that the veteran has an average pure
tone threshold, at the frequencies cited above, of
44 decibels, with an 88 percent correct speech recognition
ability in the left ear. These results, when compared with
tables found in the Rating Schedule, show that the veteran
has auditory acuity level II in the left ear (the same level
of hearing impairment obtained on the veteran's audiological
evaluation by VA in April 1993, at which time the veteran
manifested a 46 decibel average pure tone threshold, with
88 percent correct speech recognition ability in the left
ear), and that the current noncompensable rating is,
therefore, proper. See 38 C.F.R. § 4.85 and Diagnostic
Code 6100. Finally, while the veteran's assertion that he is
obliged to wear a hearing aid is acknowledged, the Board
would point out that the pertinent schedular criteria set
forth above contemplates improvement which is achieved
through the wearing of a hearing aid. See 38 C.F.R. § 4.86.
Accordingly, the Board is of the opinion that the evidence is
against an increased rating for the veteran’s service-
connected left ear hearing loss. 38 U.S.C.A. §§ 1155, 5107;
38 C.F.R. §§ 4.85, 4.86 and Part 4, Diagnostic Code 6100.
ORDER
Class II(a) outpatient dental treatment by VA for tooth
number 9 is granted.
An increased rating for left ear hearing loss is denied.
F. JUDGE FLOWERS
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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